As Donald Trump’s administration crashes through norm after norm of decent governance, a terrifying belief is emerging within it that the courts are illegitimate if they try to stand in his way. This past week, Trump himself, his vice-president JD Vance and his chief crony Elon Musk all inveighed against inconvenient federal judges. With the Republican-controlled legislative branch largely absenting itself from oversight, the lack of a judicial check on executive power is a hideous proposition.
The trade world knows the feeling. A great edifice of international law, multilateral and regional, has been built up since the second world war and particularly since the creation of the World Trade Organization in 1995. While Trump’s threat this week to bring back and extend his steel and aluminium tariffs merely violates WTO laws, his reciprocity plan to equalise US tariffs with each trading partner (and apparently to add extra penalties at whim) is a wholesale destruction of the equal treatment “most-favoured nation” (MFN) principle that underpins the entire system.
The supposed international rules-based order in trade has always been disturbingly dependent on self-restraint, particularly regarding the use of national security loopholes. Under both Trump and Joe Biden’s administrations, that restraint has rapidly weakened. Trump is now also testing domestic US legal constraints on trade policy. At home and abroad, the real counterweight must come from organised political opposition together with economic blowback from his own actions, not the law.